Wall v. James, 011521 GACA, A20A2058

Docket NºA20A2058
Opinion JudgeDillard, Presiding Judge.
Party NameWALL v. JAMES.
AttorneyAppellant Ms Lisa Young Smith West Appellee Ms Shatorree Bates
Judge PanelDILLARD, P. J., RICKMAN and BROWN, JJ. Rickman and Brown, JJ., concur.
Case DateJanuary 15, 2021
CourtCourt of Appeals of Georgia

WALL

v.

JAMES.

No. A20A2058

Court of Appeals of Georgia, Fourth Division

January 15, 2021

Superior Court Clerk of Fayette County No. 2016V0266 Hon. SCOTT L. BALLARD, Judge Appealed Order: February 14, 2020

Appellant Ms Lisa Young Smith West

Appellee Ms Shatorree Bates

DILLARD, P. J., RICKMAN and BROWN, JJ.

Dillard, Presiding Judge.

Angela Wall appeals from the trial court's grant of Donny James's counterclaim for contempt, which was filed after Wall petitioned for a modification of visitation concerning their minor daughter. Specifically, Wall argues that the trial court erred by (1) finding she willfully violated a parenting plan in three different instances; (2) ordering her to pay James's attorney fees under OCGA § 19-6-2; and (3) ordering her to repay the cost of airline tickets purchased by James for "aborted visitation efforts." Because we agree with Wall as to each of these contentions, we reverse.

Viewed in the light most favorable to the trial court's rulings, 1 the record shows that Wall and James are the parents of E. J., who was 15 years old at the time of this action. Wall and James have never been married, but in 2017, a court decreed that E. J. was James's legitimate child. The order of legitimation incorporated a parenting plan, awarding joint legal custody with Wall having primary physical custody of E. J. Wall lives in Georgia, and James lives in Maryland.

The parenting plan provides, in pertinent part, that "[d]aily phone calls from [James] shall be unrestricted to the minor child's phone," and "[b]oth parents may FaceTime, Skype[, ] or [use] other social media [to] communicate with the minor child on [an] unrestricted basis when the child is in the custody and care of the other parent." The plan further notes that Wall will have custodial time in odd-numbered years from "Thanksgiving 2017 forward (from 6:00 p.m. on the day school recesses for Thanksgiving until 6:00 p.m. on the Sunday night before school resumes)," and James will have such time in even-numbered years. As for Christmas, the plan provides that in odd-numbered years, James will receive the "[f]irst half of Christmas holidays (from after school lets out for Christmas break until 9:00 a.m. on December 27)." Finally, the plan provides that "[t]he holiday parenting time/visitation takes precedence over the regular parenting time/visitation schedule during the school year."

On October 10, 2019, Wall filed a petition for modification of visitation against James, seeking to have his visits with E. J. restricted in accordance with the child's wishes. In doing so, Wall attached an "Affidavit of Election," in which E. J. stated, "While I love my father, I do not want to visit with him at this time, and I would like for all future visits with him to be as he and I can agree."

James filed a counterclaim against Wall, contending that she was in contempt of the parenting plan order by preventing him from (1) visiting with E. J. during his allotted time in November 2019; (2) visiting with E. J. during his allotted time at Christmas 2019; and (3) speaking with E. J. by phone between October 2019 and February 2020. The trial court denied Wall's motion to modify visitation and instead granted James's counterclaim for contempt. This appeal follows, in which Wall only challenges the trial court's order as to contempt.

1. Wall argues the trial court erred by holding her in contempt and finding that she willfully violated the parenting plan in three separate instances. We agree.

In order to hold a party in contempt, a trial court must find that "the party willfully disobeyed a court order."2 And in ruling on a contempt motion, a trial court is vested with "wide discretion in deciding both whether the court's orders have been violated and how such infringements should be treated."[3] To that end, we will not disturb the trial court's determinations on these issues "absent an abuse of that discretion."4 So, given the wide latitude afforded to the trial court, we will affirm a contempt ruling if "there is any evidence in the record to support it."5 Indeed, as the factfinder, it is the trial court's duty to "reconcile seemingly conflicting evidence and to weigh the credibility of witnesses."6 With all of this in mind, and construing the evidence in favor of the trial court's ruling, 7 we will now address each instance of alleged contempt.

(a) The trial court concluded that Wall was in contempt by preventing James from visiting with E. J. during his allotted time in November 2019, but we agree with Wall that this finding was unsupported by the evidence.

The parenting plan provides that (1) Wall is to have E. J. for Thanksgiving during odd-numbered years, (2) "[t]he holiday parenting time/vacation takes precedence over the regular parenting time/vacation schedule during the school year," and (3) if there is a "conflict between the regular parenting access schedule and the holiday schedule, the holiday schedule will prevail." Importantly, the plan also specifies that the period for Thanksgiving visitation is "from 6:00 p.m. on the day school recesses for Thanksgiving until 6:00 p.m. on the Sunday night before school resumes."

In this instance, James emailed Wall on October 18, 2019, to inform her that he purchased tickets for E. J. to visit him on the weekend of November 22, 2019. Wall responded by advising James that she was entitled, under the parenting plan, to spend Thanksgiving with E. J. during odd-numbered years. James took issue with Wall's response, noting that this weekend was prior to the Thursday of Thanksgiving. Nonetheless, Wall stood by her interpretation of the parenting plan and did not take E. J. to the airport to catch the flight up to Maryland for that weekend.

The undisputed testimony at trial was that the Thanksgiving visitation period for 2019 encompassed the weekend before the Thursday of Thanksgiving. In other words, school "recessed"8-or adjourned for Thanksgiving-prior to the relevant weekend.9 And once again, the parenting plan provides that the Thanksgiving visitation period started at "6:00 p.m. on the day school recesses for Thanksgiving." Accordingly, the trial court abused its discretion in finding Wall in contempt when there was no evidence to support James's assertion that the weekend he requested was not part of the Thanksgiving visitation period under the terms of the parenting plan.10

Although James's attorney referenced a copy of E. J.'s school holiday schedule during argument, the schedule itself was never tendered into evidence. And, of course, statements by James's attorney are not evidence.[11] But even if we were permitted to consider the substance of these statements, what James's attorney said only appears to bolster Wall's testimony that the weekend prior to Thanksgiving in 2019 was included in the Thanksgiving break under the terms of the parenting plan. Indeed, James's attorney claimed that the school holiday schedule showed that E. J. was "released for Thanksgiving on November 25th," which was the Monday prior to Thanksgiving.12 This is not inconsistent with school having "recessed" for Thanksgiving break the prior Friday as Wall's testimony implied, which would necessarily mean that the child was released from having to attend school the following Monday and already on Thanksgiving break the weekend prior to Thanksgiving. In any event, the only evidence proffered at the hearing below was Wall's undisputed testimony that school "recessed" for Thanksgiving break the prior Friday. The trial court erred, then, by finding Wall in contempt for failing to send E. J. to Maryland during a weekend that was included in the Thanksgiving visitation period under the terms of the parenting plan.13

(b) Next, the trial court found Wall in contempt for preventing James from visiting with E. J. during his allotted time at Christmas 2019. Again, we agree with Wall that the trial court's finding was unsupported by the evidence.

The parenting plan provides that, in odd-numbered years, E. J. is to spend the first half of the Christmas holiday with James. It further specifies that this period encompasses the time "from after school lets out for Christmas break until 9 a.m. on December 27." Notably, unlike the Thanksgiving holiday provision, the parenting plan does not indicate a specific hour at which an exchange is to occur for the beginning of the Christmas holiday, only that it begins "from after school lets out."

Here, there was evidence that James drove from Maryland to Georgia to pick up E. J., and was at the agreed-upon exchange location (as per the parenting plan) on December 20, 2019, at 4:00 p.m. Wall was at the same location with E. J. earlier in the day between 1:30 p.m. and 1:45 p.m. And while Wall and James spoke to each other by phone as she sat in the parking lot earlier in the day, it is not clear from the record whether the two attempted to resolve the discrepancy between their apparently different plans to make the exchange when neither testified in detail about their conversation at that time. Moreover, nothing in the record reflects any earlier communication between the parties to confirm a definite meeting time for the exchange.14 Indeed, James only testified that the pickup time was 4:00 p.m. "per the order." But again, the parenting plan does not specify a pickup time for the first half of the Christmas holiday.

In light of the foregoing, the trial court erred in concluding that Wall "did not produce [E. J.] at the exchange location" in willful contempt of court because there is no evidence as to...

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